Dheeraj Singh vs State of M.P. and Others

Rohit Arya, J.�Heard on the question of admission.

This instant appeal by appellant/plaintiff under Section 100 of C.P.C. is directed against the concurring judgment and decree dated 30/06/2004 passed by Additional District Judge, Ganj Basoda, District Vidisha (M.P.) in Civil Appeal No. 39-A/2004; confirming the judgment and decree dated 15/3/2004 passed by Civil Judge, Class-I, Ganj Basoda in Civil Suit No. 9-A/99. By the aforesaid judgment, the plaintiff''s suit for declaration and permanent injunction in respect of the agricultural land described in para 2 of the appellate Court''s judgment (hereinafter referred to as "suit land") claiming to have perfected titled by adverse possession against the State, has been rejected.

Before adverting to factual matrix, it is apposite to state law in this regard as consistently held by the Hon''ble Apex Court and followed by the various High Courts including the jurisdictional High Court.

The facts required to plead and prove adverse possession when the party to a lis set up a plea of acquisition of title adverse possession has to be specific as regards to period and date from which he claims possession and then have to prove that the possession was adequate in continuity, in publicity and in extent to show that his possession was actually visible, exclusive, hostile and continues over the statutory period as contemplated under Section 65 of the Limitation Act to the knowledge of the real owner. Mere physical act of exclusive possession by, itself, cannot justify the claim of adverse possession.

A person pleading adverse possession has no equity in his favour if some one asserts acquisition of title by adverse possession. It, in fact, amounts to trying to defeat the right of true owner and, therefore, burden is very heavy upon such person to prove title by adverse possession and for that he has to plead and establish all the facts necessary as aforesaid to establish his claim.

The Hon''ble Supreme Court in the case of Karnataka Board of Wakf Vs. Government of India and Others, has observed as under:-

"11. In the eye of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won''t affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of true owner. It is a well settled principle that a party claiming adverse possession must prove that his possession is ''nec vi, nec clam, nec precario'', that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See : S.M. Karim Vs. Mst. Bibi Sakina, : Parsinni (Dead) by Lrs. and Others Vs. Sukhi and Others, and D.N. Venkatarayappa and another Vs. State of Karnataka and others, . Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. ( Dr. Mahesh Chand Sharma Vs. Smt. Raj Kumar Sharma and others, ."

Plaintiff asserted that he is in possession of the suit land since 2nd October, 1968 and holds the suit land as Bhumiswami and cultivates the land and he has also constructed a house thereon and there situates a temple also of God Shankarji and plaintiff claimed to be in continuous possession to the knowledge of the defendants. Defendants denied the plaint allegations and specifically denied that the plaintiff is in possession of the suit land for last 30 years. It was submitted that the suit land is a forest land where the plaintiff has done encroachment. On aforesaid pleadings, trial Court framed issues and allowed the parties to lead evidence and upon critical evaluation of the evidence brought on record, dismissed the suit inter alia finding that there is no proof that the plaintiff is in possession over the suit land since 2/10/1968. How the plaintiff came in possession is not evident either from the pleadings or the evidence led. In para 2 of the plaint, it is admitted that the suit land is mutated in the name of forest department. There is no justification given to assail such entry as bad or wrong. Ex. P/5 to P/7 are revenue Khasras'' in relation to the suit land issued by Forest Patwari- Rajaram (PW/3) who denies to have issued any such khasras''. PW/1-Dheeraj Singh in para 2 of his deposition has admitted that he has no knowledge as to on which date he has come into the possession of the suit land. He has no knowledge as to whom, the suit land belongs to. He neither placed the revenue record not does he have the Bhu Rin Pustika and therefore, it is evidence that plaintiff cannot be said to be in peaceful continuous possession over the suit land to the knowledge of the defendants to the extent of asserting right of perfection of title by adverse possession. In fact the suit land is a forest land whereupon the plaintiff had made the encroachment and when the forest employees sought to remove the encroachment, the plaintiff had assaulted them and criminal proceedings are also pending consideration. Likewise, the trial Court has also considered the evidence of other witnesses like PW/2 Dheeraj Singh, PW/3 Rajaram and PW/5 Munshilal and upon critical evaluation thereof, has found that it is not proved that the plaintiff is the Bhumiswami of the suit land as alleged. Per contra, DW/1-M.A, Lucknavi, has stated that the suit land is a forest land and despite issuing notices for removal of encroachment, plaintiff did not remove the encroachment and therefore, the standing crop was seized and he was removed therefrom. Total 8 cases under forest offences have been registered against the plaintiff. From Ex. D/1 to D/3, it has been found that suit land has always been registered in the name of forest department. Then Ex. D/6 and D/7 are the notices issued to the plaintiff against alleged encroachment. Considering the aforesaid evidence on record, coupled with the fact that FIRs were lodged against the plaintiff and his brothers against illegal act of encroachment, the trial Court concluded that the plaintiff''s suit deserves dismissal as there is no evidence to uphold the claim of the title of the plaintiff over the suit land much less that plaintiff perfected his title over the suit land by adverse possession. Consequently, such was dismissed. The first appellate Court again upon critical evaluation thereof has rejected the appeal.

After having gone through the judgments of both the Courts below, this Court is of the view that Courts below upon elaborate analysis of evidence of both the parties have recorded the findings against the plaintiff and dismissed the suit. No illegality or perversity is found. The entire gamut of matter is in the realm of facts which in the opinion of this Court do not warrant any interference under Section 100 of CPC. No question of law, much less substantial question of law arises in this appeal. Appeal is therefore, dismissed.